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Defense: No video, toss out case

By Lisa Redmond, lredmond@lowellsun.com

Updated:
04/21/2013 07:40:27 AM EDT

LOWELL -- Lacking a critical surveillance video that could show an alleged two-time convenience store thief in action, the attorney for robbery suspect Fernando L. Delgado asked that the charges against her client be dismissed.

At what was supposed to be a probable cause hearing Wednesday in Lowell District Court, prosecutors sought another date because video from the BP gas station that was robbed last month had not been converted into the proper format.

Delgado, 35, of 39 Wamesit St., unit 3, Lowell, pleaded not guilty to assault with a dangerous weapon (handgun), armed assault to rob, and masked armed robbery for a March 10 robbery of the BP gas station at 309 Chelmsford St. in Lowell.

He also pleaded not guilty to a separate masked armed robbery charge involving a robbery of a Citgo gas station at 626 Rogers St. in Lowell on March 4.

Delgado has been held without bail since March 11.

Defense attorney Karen Goldenberg argued that police and prosecutors have had plenty of time to convert the video.

She noted there are alternate ways to record evidence such as using an iPad to record video from security tapes.

"There is no excuse for the delay," she argued.

Judge James Barretto set a May 1 date for a probable cause hearing with no further continuances.

According to court documents, just after 10 p.m.

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on March 4, Lowell police were dispatched to a Citgo gas station where a store clerk said a white man wearing a black knit ski mask with only the eyes and mouth showing ran past the front window, jumped over the counter and pointed an "old, scratched" black semi-automatic firearm at her saying, "give me all the money, quick, quick, quick."

The man walked away with up to $600 in cash and an unknown amount of scratch tickets.

Six days later, around 11 p.m. on March 10, police responded to the BP gas station for a reported armed robbery. This time the robber was attacked by the clerk and a witness, leaving empty handed. During the struggle, the robber left his gun behind.

The robber fled in a gray Nissan Quest minivan, that was later traced to the registered owner's address on Wamesit Street. Police say the driver was identified as Delgado.

In reviewing store surveillance video at the BP station, police saw a man enter the store and immediately point a gun at the clerk.

It appeared to be the same male in the Citgo gas station robbery days earlier. The gun and clothing seemed to match, according to court documents.

In comparing the gun used in the BP gas station hold-up and the gun seen in the video of the Citgo robbery, Detective Nathan Bowler noticed the gun handle was broken during a scuffle with BP employees. After searching the floor of the BP, police found the broken piece that bore a distinctive gold circular brand on it.

When police interviewed Delgado , he allegedly told them that he was in the BP gas station but that he blacked out and had been beaten by men inside the store.

Police say Delgado was struck in the shoulder with a bat, but he never lost consciousness as the entire incident was caught on video. Delgado is allegedly seen brandishing a gun and threatening the clerk.

As a violent struggle ensued, the mask Delgado was wearing was pulled from his face, but he had black tape on his face to for concealment, the clerk told police.

Unmasked and under attack, Delgado allegedly fled the store without his mask and a black glove

The BP clerk told police he could identify Delgado by his distinctive ears and that the robber should have an injury to his left shoulder.

When police confronted Delgado, they could see black smudges on his face where the tape had been stuck, police said.

Delgado's left shoulder was also injured, police said.

Delgado allegedly admitted to police he is a heroin abuser and that his addiction may cause him to do things, but insisted he is "not a monster," according to court documents.

Delgado insisted to police he did not remember arriving at the BP. At one point, Delgado began to cry, police said.

Police then confronted Delgado about the Citgo robbery the week before. Delgado asked to see the video of that robbery. When police showed Delgado photos from the robbery, he denied being there.

When he was confronted about the similar clothing wore by the robber and the gun in the two robberies, Delgado continued to deny being at the Citgo robbery, according to court documents.

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